Wiretaps

• Author: David Schermbrucker/Randy Schwartz/Mabel Lai/Nader Hasan
• Pages: 501-533



Wiretaps

14

I. Overview ................................................ 

II. The Legislative Scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

A. Denitions ......................................... 

B. Substantive Oences ................................ 

C. Investigative Techniques Without Prior Judicial

Authorization ....................................... 

D. Investigative Techniques with Prior Judicial Authorization ... 

E. Notication, Reporting, and Admissibility ................ 

F. Sealing ............................................ 

III. Reading a Wiretap Authorization ............................. 

A. The Principle of Minimization ......................... 

B. Recitals ........................................... 

C. Oences .......................................... 

D. Types of Communications ............................ 

E. Principal Known and Other Known Persons and Places ..... 

F. Unknown Persons and Places ......................... 

© [2021] Emond Montgomery Publications. All Rights Reserved.

Search and Seizure

I. Overview

Part VI of the Criminal Code (“Invasion of Privacy”) governs the interception of

private communications and related electronic surveillance.1 It is an almost entirely

self-contained statutory scheme.2 Part VI has two important and often competing

objectives: to protect privacy by controlling the interception and disclosure of pri-

vate communications and to protect public safety by permitting law enforcement to

intercept private communications where appropriate.3 At the heart of Part VI lies

the recognition that its investigative techniques are more intrusive than the powers

of search and seizure found elsewhere in the Criminal Code and that its statutory

prerequisites must be more stringent in order to properly safeguard the heightened

privacy interests that are engaged.4

The structure of Part VI has not changed substantially since it was first enacted

in 1974. In contrast, the technological landscape to which that framework applies has

changed dramatically. This asymmetry lies at the root of many interpretive and imple-

mentational challenges in the world of wiretapping and other electronic surveillance.

As MoldaverJ observed in his concurring reasons in R v Telus Communications Co,

1 The provisions were first enacted as Part IV.1 of the Criminal Code, also entitled “Invasion of

Privacy,” as part of several statutory amendments contained in the Protection of Privacy Act,

SC 1973-74, c 50, and in response to Roger Ouimet (Chair), “The Investigation of Oences

and Police Powers” in Report of the Canadian Committee on Corrections: Toward Unity: Criminal

Justice and Corrections (Ottawa: Queen’s Printer, 1969) ch 5. Part IV.1 became Part VI of the

Criminal Code in 1985. In this chapter, we use the term “electronic surveillance” to distinguish

between the interception of “private communications” and other investigative techniques that

implicate similar interests (e.g., video observations).

2 See e.g. s487.01(4) of the Criminal Code, which is in Part XV of the Criminal Code and which

imposes the requirements of ss 183, 183.1, 184.2, 184.3, 185-188.2, 189(5), 190, 193, and 194-

196 from Part VI on video warrants. Video warrants were discussed earlier in this text in

Chapter 6. Depending on the specific issue in play, there are also other potentially relevant

provincial and federal statutes: Telecommunications Act, SC 1993, c 38; Interpretation Act, RSC

1985, c I-21 (specifically the definition of “telecommunications” in s35); Canadian Security

Intelligence Service Act, RSC 1985, c C-23. Police should also consider the regulatory frame-

work for telecommunication carriers and applicable privacy legislation.

3 See Regina v Welsh and Iannuzzi (No 6), 1977 CanLII 1215, 15 OR (2d) 1 (CA). See also R v

Goldman, [1980] 1 SCR 976 at 994, 1979 CanLII 60, McIntyreJ (“The purpose, it has been

frequently said, of Part IV.1 of the Code was to protect the right to privacy. It may be more

realistic to say that the purpose or eect of Part IV.1 has been to regulate the method of breach

of any such right. That the right may be subject to frequent lawful breach is clear … , but the

Courts must be astute to limit breaches to the extent provided by the Code.”); R v Telus Com-

munications Co, 2013 SCC 16 at para 24; Lyons v R, [1984] 2 SCR 633 at 664, 1984 CanLII 30.

4 Supra note 3 at para 27; R v Finlay, 1985 CanLII 117, 52 OR (2d) 632 (CA) [Finlay cited to

CanLII], leave to appeal to SCC refused, [1986] 1 SCR ix (upholding the constitutionality of

then Part IV.1 of the Criminal Code).

© [2021] Emond Montgomery Publications. All Rights Reserved.

Chapter  Wiretaps 

the jurisprudential “task of adapting laws that were a product of the 1970s to a world

of smartphones and social networks is a challenging and profoundly important one,”

and care must be taken to safeguard “against unforeseen and potentially far-reaching

consequences in this complex area of the law.”5 However, the jurisprudence must also

develop in a way that “recognizes the potential threat to privacy occasioned by new

and evolving technologies.”6

This chapter introduces wiretapping and related issues. It exceeds the scope of this

text to address the operation of these provisions with any greater degree of granularity.

Instead, this chapter aims to equip the reader with the fundamental concepts and

vocabulary to navigate the statutory provisions, to understand a judicial authorization

issued under Part VI, and to identify the issues of legal principle and practice that

should inform their further reading or research.

II. The Legislative Scheme

Part VI establishes the criteria and procedure for the issuance of judicial authori-

zations for electronic surveillance, limits the circumstances under which electronic

surveillance may be conducted without judicial authorization, and imposes other

requirements to ensure accountability.

A. Denitions

Section 183 contains the definitions that apply to Part VI. Their function is to clarify

and limit the scope of Part VI. Selected definitions are discussed below.

Although the word “authorization” is often used in search and seizure jurispru-

dence to encapsulate any court order (e.g., “prior judicial authorization”), the term has

a specific meaning in Part VI: an authorization to “intercept” a “private communica-

tion” under section 186 (a wiretap) or subsection 184.2(3) (a one-party consent inter-

ception applied for in person), 184.3(6) (a one-party consent interception applied for

by telecommunication), or 188(2) (an emergency wiretap). The terms “intercept”

and “private communication” are also defined in this part (in s183).

The definition of “intercept” is inclusive: it means to “listen to, record or acquire

a communication or acquire the substance, meaning or purport thereof”7 and, in its

ordinary, grammatical meaning, requires interference between the “place of origina-

tion and the place of destination of the communication.”8

5 Supra note 3 at para 53.

6 R v Jarvis, 2019 SCC 10 at para 63.

7 R v Jones, 2017 SCC 60 at para 68.

8 R v McQueen, 1975 CanLII 1373 at para 265, 25 CCC (2d) 262 (Alta CA); see also R v Singh,

1998 CanLII 4819, 127 CCC (3d) 429 (BCCA).

© [2021] Emond Montgomery Publications. All Rights Reserved.